Could the bench cause problems for the homeowners association?
Richard D. DeBoest, II
Editor’s Note: Lawyers for Goede, Adamczyk, DeBoest & Cross, PLLC answer questions about Florida community association law. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning, and business law.
Q: I am a member of the board of directors of my homeowners association. I was given a set of governing documents, but I don’t know if they are current or complete. How can I find official governance documents?
A: Chapter 720, Florida Statutes, governs homeowners associations. It defines “Guiding Documents” as follows:
- The recorded statement of community commitments and all amendments, supplements and recorded exhibits duly adopted and recorded;
- The statutes and regulations of the association of co-owners and any duly adopted modification thereof; and
- Rules and regulations adopted under the authority of the registered statement, articles of association or by-laws and duly adopted amendments thereto.
So the first thing to do is to search the public records for the county in which the community is located. This can be done online through the County Clerk of Courts website. To locate the website, you can Google the county name followed by the words “clerk of the courts”. If you have trouble locating the documents, you can ask a title company to get the documents for you. This can be done for a reasonable fee in most cases.
Most of the time, you will find the statutes and bylaws registered with the declaration. If the articles are missing, a copy of the articles of association can also be obtained from the Florida Department of State, Corporations Division. It is always important for board members to ensure that they have a complete set of current and up-to-date governance documents containing official registration information.
I found advice running from the wrong set of documents or sales documents that were never saved. It is the registered documents that are legal and binding. If you live in a condominium or co-op, the governing documents can also be located in the same way. A caveat is that rules adopted by the board are often not on the public record and you will need to obtain them directly from the association.
Q: We have a unit owner who put a bench next to the common area. The problem is that the bench is next to a canal over two feet of space that he claims belongs to the county. To access the bench, you have to go through the common area of the association. The owner of the unit was told to get a letter from the county stating that he had permission to put his bench there and that he would not hold the association liable in the event of an accident. The condo association doesn’t want to be sued because the rules weren’t followed. What can be done?
A: First and foremost, it must be determined whether the property on which the bench has been placed is a common element of condominium or county property. If it is a common element, then the association can remove the bench. If the property is owned by the county, the existence of the bench is an issue between the owner of the bench and the county.
The fact that the owner of the bench who is also a member of the association must cross a common element to get to the bench is not a violation of the condominium rules and is not considered a trespass. As a member of the association, the owner of the bench has the right to cross the common elements, even if it is to access a bench on the property of others. I think you should first hire a surveyor to determine who owns the property in question, then notify the county or have the bench removed if it is determined that it is on the common element of the condo. If the bench is not on association property, I don’t think the association can be held liable if an injury occurs because of the bench.
Richard D. DeBoest, II Esq., is co-owner and shareholder of the law firm Goede, Adamczyk, DeBoest & Cross, PLLC. Visit www.GADClaw.com or ask questions about your issues for future columns, send your request to: [email protected] The information provided here is for informational purposes only and should not be construed as legal advice. Publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross or any of our attorneys. Readers should not act, or refrain from acting, on the basis of the information in this article without first contacting an attorney, if you have questions about any of the issues raised here. Hiring a lawyer is a decision that should not be based solely on advertisements or this column.